Delta Faucet Company

Trademark Trial and Appeal Board

Apr 19, 2016

No. 85908460 (T.T.A.B. Apr. 19, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: April 19, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Delta Faucet Company
_____

Serial No. 85908460
_____

Edgar A. Zarins of Masco Corporation,
for Delta Faucet Company.
Shaila E. Lewis, Trademark Examining Attorney, Law Office 114,
K. Margaret Le, Managing Attorney.
_____

Before Seeherman, Taylor and Wellington,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Delta Faucet Company (“Applicant”) seeks registration on the Principal Register
of the mark WONDERFALL (in standard characters) for “Plumbing products,
namely, showerheads” in International Class 11.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), based on likelihood of

1 Application Serial No. 85908460 was filed on April 18, 2013, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).
Serial No. 85908460
- 2 -
confusion with the mark in U.S. Registration No. 4552878, WONDERFALL TRENCH
.. SIMPLY WONDERFUL, in standard characters and with a disclaimer of the word
TRENCH, for “Concealed linear drains for showers and baths” in International Class
11.2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
Our determination under Section 2(d) is based on an analysis of all of the facts in
evidence that are relevant to the factors bearing on the likelihood of confusion issue.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).
We have considered each of these factors for which there is argument or evidence of
record. In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods and/or
services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976).
The Marks
We first consider the du Pont factor of the similarity/dissimilarity of the marks
and compare them, as we must, in their entireties in terms of sound, appearance,
meaning and commercial impression. See Palm Bay Imports, Inc. v. Veuve Clicquot
Ponsardin, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005). However, there is
nothing improper in stating that, for rational reasons, more or less weight has been
given to a particular feature of the mark, provided the ultimate conclusion rests on a

2 Issued June 17, 2014.
Serial No. 85908460
- 3 -
consideration of the marks in their entireties. In re National Data Corp., 753 F.2d
1056, 224 USPQ 749, 751 (Fed. Cir. 1985). “The proper test is not a side-by-side
comparison of the marks, but instead ‘whether the marks are sufficiently similar in
terms of their commercial impression’ such that persons who encounter the marks
would be likely to assume a connection between the parties.” Coach Servs. Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). See
also San Fernando Electric Mfg. Co. v. JFD Electronics Components Corp., 565 F.2d
683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc. v. Morrison Inc., 23
USPQ2d 1735, 1741 (TTAB 1991), aff’d mem., 972 F.2d 1353 (Fed. Cir. June 5, 1992).
The proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. L’Oreal S.A. v. Marcon, 102 USPQ2d
1434, 1438 (TTAB 2012); Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207
USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
(TTAB 1975).
With these principles in mind, we find, on comparison, that Applicant’s mark
WONDERFALL and the cited mark WONDERFALL TRENCH .. SIMPLY
WONDERFUL are similar in appearance, sound and connotation in that both marks
include the term WONDERFALL as the dominant or sole portion of each. The
additional matter in the cited mark does not suffice to distinguish it from Applicant’s
mark. The disclaimed word “TRENCH” in the cited mark is descriptive of the
concealed linear drains, and therefore has less source-indicating significance;
disclaimed matter generally will not constitute the dominant part of a mark. See
Serial No. 85908460
- 4 -
Cunningham v. Laser Golf Corp., 222 F.2d 943, 55 USPQ2d 1842, 1846 (Fed. Cir.
2000) (quoting In re National Data Corp. 224 USPQ at 752). In addition, given the
mark’s structure and syntax, the laudatory wording “SIMPLY WONDERFUL”
modifies the term WONDERFALL, but does not alter its connotation. Last, the two
periods embedded in the center of the mark, if noticed at all when viewed, simply
separate the two literal components, thereby emphasizing the words WONDERFALL
TRENCH. Thus, although we have not ignored these additions, we find that it is the
term WONDERFALL that dominates and is the most prominent feature of
Registrant’s mark.
While differences admittedly exist between the marks when they are viewed on a
side-by-side basis, we find that in their entireties, Applicant’s mark is substantially
similar in appearance, sound, meaning and commercial impression to the cited mark
due to the shared term WONDERFALL.
The du Pont factor of similarity of the marks thus favors a finding of likelihood of
confusion.
The Goods/Channels of Trade/Classes of Consumers
We next consider the relatedness of the goods. It is well settled that the goods of
the registrant and applicant need not be identical or competitive, or even be offered
through the same channels of trade, to support a holding of likelihood of confusion. It
is sufficient that the respective goods are related in some manner, and/or that the
conditions and activities surrounding the marketing of the goods are such that they
would or could be encountered by the same persons under circumstances that could,
Serial No. 85908460
- 5 -
because of the similarity of the marks, give rise to the mistaken belief that they
originate from the same source. See Hilson Research, Inc. v. Society for Human
Resource Management, 27 USPQ2d 1423 (TTAB 1993). The issue here, of course, is
not whether purchasers would confuse the goods, but rather whether there is a
likelihood of confusion as to the source of these goods. L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830 (TTAB 1984).
In making our determination regarding the relatedness of the goods, we must look
to the goods as identified in the application and the cited registration. See Octocom
Sys., Inc. v. Houston Computers Servs., Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990); In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011).
Applicant’s goods are identified as “plumbing products, namely, showerheads” and
Registrant’s goods are identified as “concealed linear drains for showers and baths.”
The Examining Attorney maintains that the goods are related, both being shower-
related plumbing items that are sold in the same channels of trade and to the same
class of consumers. The Examining Attorney made of record web pages from the
websites of Homary.com (http://homary.com) and Signature Hardware
(http://www.signaturehardware.com) showing showerheads and concealed drains
being sold in the same channels of trade to support her position.3 She has also
submitted with her Final Office Action copies of web pages from MODBATH
(www.modobath.com)4 showing showerheads and a concealed drain being sold in the

3 Exhibits to Office Action dated August 29, 2014, pp 4-10.
4 Attachments to the Final Office Action dated March 13, 2015.
Serial No. 85908460
- 6 -
same channels of trade. These web pages also show that both products are sold under
the mark WS Bath Collections.
We find the goods as identified in the respective application and registration, and
this evidence of record sufficient to demonstrate that Applicant’s showerheads are
related to Registrant’s concealed linear drains for showers and baths, the respective
plumbing fixtures being complementary to the extent that they may be used together
in shower and bath installations, and they are sold by the same source in the same
trade channels.
Applicant’s chief argument in support of reversal of the refusal is that no
likelihood of confusion exists because the respective goods move in distinct and
separate channels of trade. Applicant, in its brief, particularly argues:5
Applicant's mark WONDERFALL is used in connection
with showerheads, a retail product with ease of
replacement by even the least experienced DIYer. Such
showerheads are typically purchased for their design and
finish in order to coordinate with other plumbing products
in the bath area. A simple twist off of the old showerhead
and twist on of the new showerhead provides a new
aesthetic for the homeowner.
…
In contrast, the shower drain pans sold by the registrant
require construction skills involving a complete overhaul of
the shower unit. These drain pans would not be an article
of purchase by retail customers but rather the bath
remodeling professional. Since (as the description of goods
clearly states) these drain pans are concealed, they are
designed to be inserted below the tile work during the early
construction of the bath area. Retail customers would have
no interaction with such drain pans as the true channels of

5 4 TTABVUE 2.
Serial No. 85908460
- 7 -
trade is the professional remodeling industry. The
registrant's goods have no more similarity to applicant's
channels of trade than the floor tile used in the remodel.
The typical consumer would not undertake such a project
and would certainly hire a professional contractor. Thus
while applicant’s goods travel through consumer oriented
retail channels, the goods of the cited registration are
directed to the professional construction industry, two very
distinct channels.
There are several problems with this argument. First, whether or not DIYers
might purchase and install a showerhead, there is nothing in Applicant’s
identification that would restrict such purchasers to ordinary consumers. Remodeling
professionals, such as contractors and plumbers who install concealed linear shower
drains, can also purchase showerheads, and given the complementary nature of these
goods, they very well might purchase both types of products for such an installation.
Thus, these goods would be sold to the same classes of consumers. Second, the
evidence shows that linear shower drains can be sold to DIYers and other ordinary
consumers, the same consumers that Applicant acknowledges would be purchasers
of its showerheads. Evidence from “about home” (www.plumbing.about.com/), DIY
network (http://www.diynetwork.com/bathroom/), and The Home Depot
(http://www.homedepot.com/c/installing) include tutorials on installing shower pans
and drains, and evidence from QuickDrainUSA (www.quickdrainusa.com) includes
information, presumably directed to, among others, the ordinary consumer,
explaining the nature and purpose of a linear drain and providing a link to “Ask a
Serial No. 85908460
- 8 -
Tech/Submit Your Project. If you have a technical question or would like to submit
your project, please follow the link below.”6
Moreover, even if we were to consider professional contractors and plumbers as
the consumers for both goods, because of the similarity of the marks and the
complementary nature of the goods, we would find confusion to be likely. That is, even
careful professionals are likely to believe, because of the inherent connection between
showerheads and shower drains, that showerheads sold under the mark
WONDERFALL and concealed linear drains for showers and baths sold under the
mark WONDERFALL TRENCH .. SIMPLY WONDERFUL, emanate from a single
source.
Conclusion
When we consider the record, the relevant likelihood of confusion factors, and all
of the arguments and evidence relating thereto, we conclude that in view of the
substantial similarity in the commercial impressions of the marks and the overlap in
the channels of trade and classes of consumers, the contemporaneous use of the
respective marks on the related complementary goods is likely to cause confusion as
to the source or sponsorship of such goods.
Decision: The refusal to register Applicant’s mark WONDERFALL is affirmed.

6 Attachments to the Final Office Action dated March 13, 2015.